State v. Patel

Appeal
from the Circuit Court for Rutherford County Nos. F-71339A
& F-71339B David M. Bragg, Judge

The
Defendants, Kalpesh Patel and Pratikkumar V. Patel, were each
convicted of one count of conspiracy to commit first degree
murder, a Class A felony, and one count of solicitation to
commit first degree murder, a Class B felony. See
Tenn. Code Ann. §§ 39-12-102, -103, -107. The trial
court merged the solicitation convictions into the conspiracy
convictions and sentenced each Defendant to fifteen years as
Range I, standard offenders. On appeal, the Defendants raise
the following issues: (1) both Defendants contend that the
evidence was insufficient to sustain their convictions for
conspiracy to commit first degree murder; (2) both Defendants
contend that the trial court erred in denying their motions
to suppress evidence retrieved during warrantless searches of
their cell phones; (3) Defendant Kalpesh[1] contends that the
trial court erred by not sentencing him as an especially
mitigated offender; (4) Defendant Kalpesh contends that a new
trial is warranted based on newly discovered evidence
impeaching the State's primary witness; (5) Defendant
Pratikkumar contends that the State withheld exculpatory
evidence; and (6) Defendant Pratikkumar contends that he
received ineffective assistance of counsel from his trial
counsel.[2] Following our review, we affirm the
judgments of the trial court.

Christopher
Robinson testified at trial that he was a construction worker
living in Rutherford County and that he had never been
arrested or in any kind of "criminal" trouble. Mr.
Robinson further testified that he had known Defendant
Kalpesh for six or seven years. Mr. Robinson explained that
he had frequented one of Defendant Kalpesh's stores, that
he got to know Defendant Kalpesh, and that he then began
doing construction jobs at Defendant Kalpesh's stores and
home. Mr. Robinson recalled that in September 2013, he was
"doing a water line" at one of Defendant
Kalpesh's stores when Defendant Kalpesh asked Mr.
Robinson if he "would like to do some work for one of
[Defendant Kalpesh's] cousins at another store." Mr.
Robinson told Defendant Kalpesh that he "would be
interested."

On
September 29, 2013, Defendant Kalpesh called Mr. Robinson and
asked him to meet at the store to discuss the work with
Defendant Kalpesh's cousin. When he arrived at the store,
Defendant Kalpesh had Mr. Robinson go to "the back
room" where Defendant Pratikkumar was waiting for them.
Mr. Robinson testified that he had never met Defendant
Pratikkumar before. Mr. Robinson claimed that Defendant
Pratikkumar had a gun "[o]n his side" during their
meeting and this made Mr. Robinson "real nervous."
According to Mr. Robinson, Defendant Pratikkumar stated that
he needed "someone to kill [his] wife" and that he
would pay $50, 000 "to have it done." Mr. Robinson
testified that he initially thought the Defendants "were
joking around, " but Defendant Pratikkumar "kept
going into details [about] how he wanted it done."

Mr.
Robinson explained that Defendant Pratikkumar wanted his wife
shot and a "backup plan" in case "it could not
go that route." According to Mr. Robinson, Defendant
Pratikkumar wanted his wife killed "as soon as
possible." Defendant Pratikkumar told Mr. Robinson that
he would leave his house around 8:00 a.m., that he wanted his
wife killed by 8:30 a.m., and that he "would come back
and make sure the job was done." Defendant Kalpesh was
to pay Mr. Robinson once Defendant Pratikkumar confirmed that
his wife was dead. Mr. Robinson testified that Defendant
Pratikkumar stated that his wife "had to be gone"
and that Defendant Pratikkumar seemed "very
excited" that his wife would soon be dead.

According
to Mr. Robinson, Defendant Pratikkumar provided Mr. Robinson
with his wife's address, a description of her car, and
her license plate number. Defendant Pratikkumar told Mr.
Robinson that Defendant Kalpesh would provide him with a gun
the next day. Defendant Pratikkumar also told Mr. Robinson
that his "daughter would be asleep in [her]
bedroom" and that Mr. Robinson was to shoot his wife and
"let the little girl sleep." Mr. Robinson recalled
that "[i]t didn't matter" to Defendant
Pratikkumar if he killed Defendant Pratikkumar's wife or
arranged for someone else to "as long as it was taken
care of." Mr. Robinson was left with the impression that
"[t]he only thing [Defendant Pratikkumar] wanted to make
sure [of] was that [his wife] was dead."

Mr.
Robinson testified that Defendant Pratikkumar was
"[k]ind of upset" when he suggested that Defendant
Pratikkumar "get a divorce." According to Mr.
Robinson, Defendant Pratikkumar stated "that he had two
people in Gallatin that [were] going to take care of"
killing his wife, but that he wanted Mr. Robinson "to do
it" because Defendant Kalpesh trusted him. Mr. Robinson
recalled that Defendant Kalpesh was in the room during this
conversation with Defendant Pratikkumar and that Defendant
Kalpesh was "shaking his head" in agreement with
what Defendant Pratikkumar was saying.

Mr.
Robinson testified that he was "in shock" during
his conversation with the Defendants. Mr. Robinson further
testified that he told Defendant Pratikkumar that he
"would make sure that it happened" in order to
"buy time for" Defendant Pratikkumar's wife.
Defendant Pratikkumar then left the store. According to Mr.
Robinson, he asked Defendant Kalpesh why Defendant
Pratikkumar could not just get divorced and Defendant Kalpesh
told him that Defendant Pratikkumar's "family would
disown him if [he] got a divorce." Mr. Robinson also
claimed that Defendant Kalpesh told him that Defendant
Pratikkumar "had this planned for a long time." Mr.
Robinson testified that he then left the store and went to
work without telling anyone about what had happened because
he "thought it was a joke."

The
next morning, September 30, 2013, Defendant Kalpesh called
Mr. Robinson and asked to meet him in the parking lot of a
Sam's Club in order to pay him for a previous
construction job. Defendant Kalpesh did not tell Mr. Robinson
that Defendant Pratikkumar would also be there. Mr. Robinson
parked his truck and, after a few minutes, Defendant Kalpesh
parked his van on one side of the truck and Defendant
Pratikkumar parked his van on the other side of the truck. A
recording from the Sam's Club's video surveillance
system depicting the parking lot at approximately 9:30 a.m.
on September 30, 2013, was played for the jury. Mr. Robinson
identified his truck and the Defendants' vans on the
surveillance video. According to Mr. Robinson, Defendant
Kalpesh got out of his van and got into Defendant
Pratikkumar's van. A short time later, Defendant Kalpesh
called Mr. Robinson and told him that Defendant Pratikkumar
wanted to talk to him.

According
to Mr. Robinson, Defendant Kalpesh got out of Defendant
Pratikkumar's van holding "a sack." Mr.
Robinson testified that when he got in Defendant
Pratikkumar's van, he asked "what was in the bag,
" and Defendant Pratikkumar responded that he had given
Defendant Kalpesh "$50, 000 in cash." Mr. Robinson
further testified that Defendant Pratikkumar told him that
Defendant Kalpesh was taking the money "to trade that
cash in" at a different bank so "it would not be
traced back to the bank" it was withdrawn from. Mr.
Robinson claimed that Defendant Pratikkumar then
"started describing everything that he wanted
done." Defendant Pratikkumar gave Mr. Robinson a picture
of his wife, and Mr. Robinson used his cell phone to take a
picture of it. Defendant Pratikkumar also gave Mr. Robinson
his address, a description of his wife's car, and
"her tag number." Mr. Robinson testified that he
wrote all of this information down on a piece of paper.

Mr.
Robinson claimed that Defendant Pratikkumar said that he
wanted his wife killed the next morning. According to Mr.
Robinson, Defendant Pratikkumar told his wife that a
"handyman" would be coming to their house that
morning to make some repairs. Defendant Pratikkumar
instructed Mr. Robinson to shoot his wife in their bedroom
and to "throw stuff around" so it would look
"like a robbery gone bad." Mr. Robinson further
claimed that Defendant Pratikkumar told Mr. Robinson to let
his daughter "sit there and cry" if she woke up
during the murder. Mr. Robinson further testified that he and
Defendant Pratikkumar discussed having "another
person" commit the murder. Mr. Robinson claimed that he
agreed to arrange the killing without "getting
[any]thing out of it."

Mr.
Robinson testified that he told Defendant Pratikkumar that he
would "make sure that it got done" and went back to
his truck. As Defendant Pratikkumar drove away, Mr. Robinson
wrote down Defendant Pratikkumar's license plate number
and a description of the van on the same sheet of paper that
he had previously written down the information about
Defendant Pratikkumar's wife on. Mr. Robinson testified
that he then went to one of Defendant Kalpesh's stores.
According to Mr. Robinson, Defendant Kalpesh gave him a box
containing $15, 000 in cash. Mr. Robinson also claimed that
Defendant Kalpesh stated that he had not bought a gun, that
he wanted Mr. Robinson "to purchase the gun, " and
that he would give Mr. Robinson "a couple thousand
dollars for the gun after it was all said and done."
Defendant Kalpesh then allegedly instructed Mr. Robinson to
dispose of the gun after the murder by throwing it in a
river.

Mr.
Robinson testified that, after the events of that morning, he
believed the Defendants were serious about having Defendant
Pratikkumar's wife killed. Mr. Robinson called a local
attorney, Rick Mansfield, and told him about his
conversations with the Defendants. Mr. Mansfield had Mr.
Robinson call another local attorney who was a former
prosecutor and had contacts with the Tennessee Bureau of
Investigation (TBI). As a result of these conversations, Mr.
Robinson was contacted by TBI Special Agent Caleb Utterback.
Agent Utterback met with Mr. Robinson at one of Mr.
Robinson's jobsites. Mr. Robinson gave Agent Utterback
the box containing $15, 000 and the piece of paper with the
information he had written down during his meeting with
Defendant Pratikkumar at Sam's Club. Mr. Robinson also
showed Agent Utterback the picture of Defendant
Pratikkumar's wife that he had taken with his cell phone.

Later
that day, Defendant Pratikkumar called Mr. Robinson. Mr.
Robinson did not answer the phone and contacted Agent
Utterback. Agent Utterback arranged to meet Mr. Robinson in
the parking lot of a local store, so Mr. Robinson could call
back Defendant Pratikkumar and their conversation could be
recorded. Defendant Pratikkumar did not answer his phone when
Mr. Robinson called him, but he called Mr. Robinson back a
short time later. This conversation was recorded and played
for the jury at trial. Mr. Robinson started the conversation
by confirming the license plate number of Defendant
Pratikkumar's wife's car. The following exchange then
occurred:

[Mr. Robinson]: [Okay], what time did you want me to be at
Almaville Market tomorrow?

[Defendant Pratikkumar]: Um, you mean after you finish the
work?

[Mr. Robinson]: Yeah, after the work[']s finished. I mean
he's going to be doing the work, but what time do you
want me there at the store?

[Defendant Pratikkumar]: Oh, you can meet anytime. I mean as
soon as you call me from the store, the work is done; your
work is done too.

[Mr. Robinson]: [Okay], so, and [Defendant Kalpesh] does have
the rest of the money sitting there, right?

[Defendant Pratikkumar]: Yep . . . .

[Mr. Robinson]: [Okay], I mean, uh

[Defendant Pratikkumar]: I mean as soon as you know on your
phone that it's done. You know? Then [Defendant Kalpesh]
will take care of it. He'll get it before he gets there.

[Mr. Robinson]: [Okay], I just wanted to make sure, buddy,
because my man is asking me, and I just need to make sure
that everything's lined up and set to go. But you are
sure you want this done?

[Defendant Pratikkumar]: What did you say?

[Mr. Robinson]: I said, you are sure that you want this done?
Cause once I hang up it's over with. Come tomorrow at
[8:30 a.m.] it's done.

[Mr. Robinson]: [Okay], well, I'm not going to back out.
What time are you going to be leaving the house?

[Defendant Pratikkumar]: [8:00 a.m.].

[Mr. Robinson]: [8:00 a.m.]. [Okay], well, everything is
lined up, everything is set to go. I will not talk to you
[any] more [un]til tomorrow. And once it's done, ah, make
sure the money is there because my man's not going to
play around.

[Defendant Pratikkumar]: That's it. You don't need to
worry about the rest of the thing. As I say, once this work
[is] done [the] right way, the way I want it, you will
remember that day. I will always take care of you nicely . .
. .

[Mr. Robinson]: [Okay], buddy, I do appreciate it, I'm
fixing to get off here and, uh, I will talk to you tomorrow.

[Defendant Pratikkumar]: Yeah, I just need you to be 100%,
that's what I need.

[Mr. Robinson]: 100%, you've got 110% of me.

[Defendant Pratikkumar]: That's it man. Alright man.

[Mr. Robinson]: Alright, bye.

[Defendant Pratikkumar]: Bye.

Shortly
after the first conversation ended, Defendant Pratikkumar
called Mr. Robinson again wanting to make sure that he had
"the address and everything." Mr. Robinson
confirmed Defendant Pratikkumar's address and the
description of Defendant Pratikkumar's wife's car.
Then, the following exchange took place:

[Mr. Robinson]: I did, [okay]. That's what I wanted to
make sure of so everybody's on the right page, and we
asked you --

[Defendant Pratikkumar]: You are my handyman for my new
store, [okay]? We are trying to build a counter. And, uh, we
are cool and everything and you can invest in it.

[Mr. Robinson]: [Okay].

[Defendant Pratikkumar]: So make sure you do my work, [okay]?

[Mr. Robinson]: Does your wife know that the handyman is
going to be there to work on the doors and the floor in the
morning?

[Defendant Pratikkumar]: Yes, sir.

[Mr. Robinson]: [Okay], and the baby is supposed to be
asleep, right?

[Defendant Pratikkumar]: Yes.

[Mr. Robinson]: [Okay], that's all I need to make sure of
buddy. ...

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